# United States Court of Appeals **For the Eighth Circuit**

___________________________ No. 15-2184

___________________________ Others First, Inc.

lllllllllllllllllllllPlaintiff - Appellant

Better Business Bureau of Greater St. Louis, Inc.

lllllllllllllllllllllDefendant - Appellee

____________ Appeal from United States District Court for the Eastern District of Missouri - St. Louis

____________ Submitted: January 14, 2016 Filed: July 12, 2016

____________ Before LOKEN, GRUENDER, and KELLY, Circuit Judges.

____________ LOKEN, Circuit Judge. In August 2011, the Better Business Bur eau of Greater St . Louis (“the BBB”) published a news release (“the Release”) expr essing concern about Others First, Inc. (“Others First”), a Michigan-based char ity that had recently begun soliciting vehicle donations in the St. Louis area. A copy of the Release is attached as Appendix A to this opinion. In June 2014, Others First filed this dive rsity action in the Eastern District of Missouri, asserting tort claims for injurious falsehood, based on alleged falsehoods contained in the Release, and fo r interference with business expectancy,based on allegations that th e BBB published the Release to direct car donations to a competing BBB member, took actions to keep the Release on the first page of Google search results for the search term “Others First,” and indu ced a Kansas City television station to run a story in November 2014 based on the Release.

The BBB filed motions to dismiss and for summary judgment. The district
court 1 granted summary judgment in favor of the BBB, concluding that the Release was not actionable injurious falsehood becau se “no reasonable factfinder could ever find that the BBB stated anything other thanthe truth and its s eemingly well-informed opinions about Others First,” and that the to rtious interference claim necessarily failed because the Release contained no wrongful defa mation. Others First appeals, arguing that both claims should have survivedsummary judgment because the record contained sufficient evidence to raise genuine issues of disputed fact. 2Reviewing the grant of summary judgment de novo and viewing the facts in the light most favorable to the non-moving party, Others First, we affirm. SeeMercer v. City of Cedar Rapids , 308 F.3d 840, 843 (8th Cir. 2002) (standard of review).

I. The Tortious Interference Claim.

Others First’s principal argument on appeal is that the district court erred in concluding that the tortious interference claim necessarily fails because the Release contained no actionable injurious fals ehood. Under Miss ouri law, “[t]ortious interference with a contract or business expectancy requires proof of: (1) a contract or valid business expectancy; (2) defe ndant’s knowledge of the contract or

1 The Honorable Rodney W. Si ppel, Chief United States District Judge for the Eastern District of Missouri.

2 Others First argued to the district c ourt that summary judgment was premature because it had not conducted di scovery, but it did not file a motion seeking additional time to conduct discovery. See Fed. R. Civ. P. 56(d).
-2-relationship; (3) a breach induced or cause d by defendant’s inte ntional interference; (4) absence of justification; and (5 ) damages.” Nazeri v. Mo. Valley Coll. , 860 S.W.2d 303, 316 (Mo. banc 1993). To show an absence of justification, Others First has the burden of producing sufficient ev idence to show that the BBB employed improper means to further its own interests. “[I]mproper means are those that are independently wrongful, such as . . . defamati on, misrepresentation of fact, . . . or any other wrongful action recognized by statute or the common law. Conversely, no liability arises if the defendant had an unqualified legal right to do the act complained of.” Id. at 317 (citation omitted).

“[W]here a tortious interference claim is based upon an alle ged defamation, if a plaintiff’s defamation claim fails, the tortious interference claim must also fail because the plaintiff cannot establish an abse nce of justification as a matter of law.” Castle Rock Remodeling, LLC v. Better Bus. Bureau of Greater St. Louis , 354 S.W.3d 234, 245 (Mo. App. 2011); see Milkovich v. Lorain Journal Co. , 497 U.S. 1, 18-20 (1990). We reject Others First’s conten tion that the record contains no evidence supporting the BBB’s legitimate interest in warning consumers of questionable business practices. If record evidence was needed, Others First itself provided the BBB’s published Mission Statement in its summary judgment responsive exhibits. Thus, if the Release contained no actionabl e injurious falsehood -- the issue we will discuss in Part II -- Others First needed to submit sufficient evidence of some other independently wrongful action to avoid summary judgment dismissing its tortious interference claim.

Others First argues that it submitted su fficient evidence of three independently wrongful acts: the BBB (1) published the Rel ease “to help a BBB member . . . obtain an unfair and illegal competitive advantage over Others First”; (2) republished the Release to keep it at the top of Google s earch engine results; and (3) induced or assisted a Kansas City television station to run the November 2014 story based on the Release. Assuming without deciding th at sufficient evidence supporting these

-3-allegations of wrongful motive and actions would defeat a defamation defendant’s motion for summary judgment, the record contains no evidence supporting these allegations, other than their assertion in the First Amended Complaint, and declarations by an officer and a contracting agent stating that the assertions are what Others First believes to be true. “Mere opi nion fails to raise any issue of material fact that precludes summary judgment.” Rice v. Hodapp , 919 S.W.2d 240, 244 (Mo. banc 1996); seeCastle Rock , 354 S.W.3d at 245-46. Therefore, Others First failed to prove the BBB employed any other impr oper means, and the distri ct court properly granted summary judgment on this claim if the Release was not defamatory.

II. The Injurious Falsehood Claim.

Under Missouri law, although defam ation and injurious falsehood are distinct torts, for a statement to be actionable as injurious falsehood it must be defamatory. SeeDiehl v. Kintz , 162 S.W.3d 152, 155-56 & n.4 (Mo. App. 2005). “[O]ne who publishes a false statement harmful to the inte rests of another is subject to liability for pecuniary loss resulting to the other” if:

(a) he intends for publication of th e statement to result in harm to interests of the other having a pecuni ary value, or either recognizes or should recognize that it is likely to do so, and (b) he knows that the statement is false or acts in reckle ss disregard of its truth or falsity.
Wandersee v. BP Prods. N. Am., Inc. , 263 S.W.3d 623, 628 (Mo. banc 2008) (quotation and emphases omitted) . To determine if the st atement is defamatory, the challenged words “must be stripped of any pleaded innuendo and construed in their most innocent sense,” but at the same time “must be considered in context, giving them their plain and ordinarily understood meaning.” Nazeri , 860 S.W.2d at 311 (citations omitted).

-4-If a statement is true, it is not de famatory as a matter of law. Rice , 919 S.W.2d at 243-44. Statements of opinion are protect ed by the First Amendment, and, even if made maliciously or insincerel y, cannot be actionable. SeeHammer v. City of Osage Beach , 318 F.3d 832, 842 (8th Cir. 2003) (applying Missouri law). Whether a statement is a protected opinion is also a que stion of law. The court must look to “the totality of the circumstances to determin e whether the ordinary reader would have interpreted the statement as an opinion.” Id. at 842-43 (quotation omitted). However, the First Amendment “privilege does not apply when the statement of opinion implies the existence of undisclosed defamatory fact s.” The question for the court is “whether a reasonable factfinder could conclude that the statement [of opinion] implies an assertion of objective fact.” Castle Rock , 354 S.W.3d at 241 (quotation omitted).

Others First failed to plead alleged defamatory statements with the particularity required by Missouri law. However, the di strict court denied the BBB’s motion to dismiss because Others First’s response in opposition to summary judgment alleged that eight specific statements in the Release were defamato ry as a matter of law. Like the district court, we will limit our analysis to those eight statements.

1. “BBB Urges Caution On Others First Car Donation Programs.” Others First solicits car donations nationwide, operating under various names including Cars Helping Veterans, Cars Fighting Cancer, and Mikie’s Minutes. The BBB began investigating Others First in March 2011 wh en it began soliciting car donations in the St. Louis area under the name Cars Helping Veterans. The Releas e suggested caution because of possible ties between Others Fi rst and Rick Frazier, who was the subject of prior complaints for his work with vehicle donation programs in other States. Urging caution was an expression of the BBB’s opinion because it was “a subjective assessment and not an objectively verifiable fact.” Castle Rock , 354 S.W.3d at 242. Therefore, we consider whether the “opi nion implie[d] the existence of undisclosed defamatory facts.” Id. at 241. Reading this statement in the context of the Release as a whole, we conclude that the truthful f acts in the Release were sufficient to support

-5-the cautionary opinion without implying any other facts. Thus, it was protected opinion and not defamatory as a matter of law. SeeHammer , 318 F.3d at 842. Others First argues the BBB could not have “republis hed” the Release on the internet for four years solely to “caution” consumers. But it submitted no evidence to support this speculative, counterintuitive assertion.

2. “The BBB advises caution when deali ng with Rick Frazier and the charity Others First. Others First is a two-year-old nonprofit that raises money for causes, such as disabled and homeless veterans, c ancer research, children and animals. In recent months, Others First has mailed solic itations to St. Louis area consumers on behalf of an affiliated charity, Cars Helping Veterans.” Like statement 1, this statement urging caution was a protected opini on. The facts set forth are undisputed.

3. “A national charity that is seeking ca r donations in the St. Louis area has ties to a Detroit area busin essman who has been criticized for alleged improprieties in running similar programs, the [BBB] warns.” In support of its motion for summary judgment, the BBB submitted a December 1998 article from the Detroit Free Press stating that Charity Motors, “the largest of metro Detroit’s used-car donation programs,” gave less than 40% of its money to charity last year and paid its “founder,” Rick Frazier, “a huge sum . . . drawing sharp criticism from [the] Michigan Attorney General”; and that Frazier had previously been sued by Mother Waddles Perpetual Mission for allegedly withholding money he earned by running the Mission’s vehicle donation program. The BBB also submitted documentary evidence establishing that (i) in 2010, Others Firs t entered into consulting agreements with Charity Funding Consulting Group, Inc., a fo r-profit corporation formed and owned by Frazier, and with Charity Car Brokers , LLC, a corporation formed by Maurice Banks, former Treasurer of Others First, to administer and manage Others First’s vehicle donation program; (ii) Banks and Frazi er were also involved with a venture called Charity Tickets, Inc.; (iii) some s ources listed Frazier as the founder of Others First, alough Frazier denied being the founder and David Ke nnedy, President of

-6-Others First, stated that Frazier had never b een a director or officer of Others First in a letter the BBB quoted in the Release; and (iv) Frazier had filed a lawsuit against the Military Order of the Purple Heart Service Foundation relating to his contracts to run its car donation charities, and the Foundation filed a counterclaim alleging that Frazier misappropriated funds and breached the contracts.

Others First argues that it had no “ties” to Frazier because Frazier was not the founder of Others First. Considering the statement in context and giving the words their ordinary meaning, a reader would construe “ties” more broadl y than Others First. Frazier’s undisputed “tie” to Others First was a contract to run its vehicle donation program for a percentage of the profits. It was also true that Frazier was “criticized for alleged improprieties” in the Detroit Free Press article and the Foundation countersuit. Thus, stripped of pleaded innuendo, statement 3 was factual and not defamatory. See Nazeri , 860 S.W.2d at 311.

4. “Michelle L. Corey, BBB Presiden t and CEO, said the BBB is concerned about Frazier’s controversial history with other charitable vehicle donation programs. ‘Mr. Frazier’s past problems are reason to be cautious about his newest venture,’ she said.” This statement was Corey’s opinion, another expression of caution like the protected opinion in stat ements 1 and 2. There was nothing in Corey’s opinion to suggest an implicit defamatory fact. The Release provided the context for her opinion, includi ng details of Frazier’s “controversial history.” Others First argues the phrase “newest venture” fa lsely implied that Frazier founded Others First. But the plain meaning of “new est venture” is not so limited. Frazier unquestionably joined in a business venture with Others First by agreeing to manage its vehicle donation program. The statement was not defamatory as a matter of law.

5. “Corey also said it appears that a form er associate of Frazier, and perhaps even Frazier himself, may have potential conflic ts of interest over their involvement in the Others First donation program.” Alleging a conflict of interest is not

-7-defamatory unless it implies undisc losed defamatory facts. SeePape v. Reither , 918 S.W.2d 376, 381 (Mo. App. 1996) (allegations of illega l conduct are non-defamatory opinions); Koly v. Enney , 269 F. App’x 861, 865 (11th Cir. 2008) (classifying conduct as “a serious conflict of interest” was protected opinion). The statement was presented as opinion, couched in equivocal language -- “appears, ” “perhaps,” “may,” and “potential.” SeeRibaudo v. Bauer , 982 S.W.2d 701, 705 (Mo. App. 1998) (“[T]he average reader would have believe d the statements were opinion” because of their “qualifying language.”) The Detroit Free Press article provided a basis for Corey’s “conflict of interest” opinion, reporting that “charity officials are prohibited by federal law from deriving unreasonable personal gain from their involvement with their charity.” Statement 5 was non-defamatory opinion as a matter of law.

6. “Frazier is described in the media and on the website of an Others First charity as the charity’s founder, although he denies that role. Banks is the previous treasurer of Others First.” This statement is non-actionable as a matter of law because it was true, whether or not Frazier was in fact Other First’s founder. The BBB included Other First’s response in the Rel ease: “Kennedy . . . said in a letter to the BBB that Frazier has never been a board me mber or officer of Others First and any reference to him as founder is ‘unauthorized and misguided.’”

7. “Frazier’s problems in the charity arena have been the subject of news reports. The Detroit Free Press reported in 1998 that the Mother Waddles Perpetual Mission charity in Detroit accused Frazier of several improprieties in that donation program. The newspaper also raised questi ons about Frazier’s involvement with the Charity Motors donation program in Detroit.” 8. “Last year, the Virginia-based Military Order of the Purple Heart Foundation alleged in a court suit that an audit found widespread problems with Frazier’s role in that program, incl uding self-dealing, illegal practices and destruction of incriminating records.” Others First does not contest the fact that the Detroit Free Press wrote articles critical of Frazier and that the Foundation made

-8-allegations in a countersuit. The Release not ed that “Frazier de nied the claims.” These statements were non-defamatory because the facts stated were true.

Others First argues that “[n]o materials are provided to the reader to assess the veracity” of the statements in the Release. However, there is no requirement that readers be provided source materials for non-defamatory speech to be protected. Hammer , 318 F.3d at 843. The district court properly granted summary judgment dismissing Other First’s claim of injurious falsehood because all of the challenged statements were either true statements of fact or protected opinion, and properly granted summary judgment dismissing the tortious interference claim given the absence of wrongful defamation.

The judgment of the district court is affirmed.

______________________________

-9-Appendix A